At the end of 2016, the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission released the results of their research into pregnancy discrimination. They found that one in nine mothers report that they were either dismissed from their jobs, made redundant or made to feel as if they had to leave their jobs while one in five mothers said that they had experienced harassment from their employer and/or colleagues while pregnant.
Following on from this research, the government announced that it would consider strengthening the laws against discrimination for new and expectant mothers.
Daxa Shah is an employment law consultant with the ELAS Group. She has put together her top tips for employers to avoid a discrimination claim and prevent issues arising when an employee is pregnant.
Deal with any performance issues as soon as they arise
If they are left and suddenly raised when an employee announces a pregnancy – no matter how genuine the performance issues are – it will automatically look as though they are being raised due to the pregnancy rather than the initial concerns.
Ensure swift risk assessments
When an employee notifies you that they are pregnant you are required to undertake a risk assessment to ensure that they have safe working conditions. This should be done as soon as possible and any necessary adjustments made. Intermittent risk assessments can be carried out as necessary throughout the pregnancy.
Basic minimum rights
Make sure you comply with basic minimum rights such as allowing time off for antenatal appointments and being supportive to women who suffer really bad pregnancies. Let’s face it – pregnancy is not a nice time for most and having the additional stress of an employer who violates their basic employment rights will only make things worse.
Document performance reviews and/or any issues
If any action needs to be taken against an employee with regards to their conduct or performance then its better if you can show evidence that the decision to discipline or dismiss them is purely due to their performance and conduct rather than the fact that they are pregnant.
When sickness strikes
If any sickness does occur during the pregnancy and the employee is being brought into a disciplinary hearing for this i.e. if their Bradford factor triggers it or the absence is unacceptable (some do take advantage) then any illness pertaining to their pregnancy should be discounted and not considered for absence reasons.
It’s very important to carry out a thorough investigation prior to any disciplinary meeting, probation review or employment review in order to avoid any doubt. Where there are any potentially contentious issues involved we recommend taking the longer procedure of the process as best practice, even if employees are under the two year service mark where they are ineligible to make a claim.
If there are any issues pertaining to discrimination then the employee will have the right to claim automatic unfair dismissal as well as discrimination, regardless of length of service.
If cases are settled prior to a tribunal then the business will always seek to be protected under a settlement agreement, which will have non-disclosure clauses. This is always part and parcel of any settlement agreement and, unfortunately, usually causes some frustration with employees who can feel that justice has not been served.
If an employee feels very strongly about how they have been treated, they may feel that the only way for justice is to see the case all the way to tribunal. This all comes down to personal choice for the employee, how strongly they feel about the issue and how important it is to them.
A final note under Regulation 10 of the Maternity and Parental Rights Act 1999:
Women on maternity leave have the right to return to the same job when they come back from maternity leave.
If you are looking to make redundancies, woman who are pregnant or on maternity leave are given priority during any selection process.
Further reading on pregnancy discrimination
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